(d) under coverage A, to bodily injury to or sickness, disease or death of any employee of the insured arising out of and in the course of (1) domestic employment by the insured if benefits therefore are in whole or in part either payable or required to be provided under any workmen's compensation law, or (2) other employment by the insured.

III Definition of Insured: (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word "insured" includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person, while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.

The disagreement in this action is between two insurance companies over the interpretation of the word "insured" in a comprehensive automobile liability insurance policy issued by defendant Liberty to Marty's. The clauses in question here provide:

Exclusions

This insurance does not apply:

(c) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured, but this exclusion does not apply to any such injury arising out of and in the course of domestic employment by the insured unless benefits therefor are in whole or in part either payable or required to be provided under any workmen's compensation law.

Persons Insured

Each of the following is an insured under this insurance to the extent set forth below:

(a) the named insured;

(b) . . .

(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person shall be an insured only if he is:

(1) a lessee or borrower of the automobile, or

(2) an employee of the named insured or of such lessee or borrower.

In PMA v. Aetna an accident occurred in which Clyde A. Skinner, a driver of a Niehaus truck, was injured. Skinner had driven the truck to the premises of Delaware Valley Wool Scouring Company (Delaware) where a Delaware employee, in the course of his employment, injured Skinner when he negligently operated a Delaware-owned forklift in unloading the Niehaus truck. Skinner sued Delaware in the Court of Common Pleas of Philadelphia County. The case was settled prior to trial for $37,500. Here, an accident occurred in which David Rispo, an employee of Marty's, was injured. He had driven a trailer from Motor Freight Express, Inc., to J. A. Cunningham, Inc., where he was injured when the load he was transporting fell on him. Rispo sued Motor Freight Express, Inc., in the Court of Common Pleas of Philadelphia County. A jury returned a verdict in favor of Rispo and against Motor Freight Express, Inc., in the amount of $734,434.00.

The Court in PMA v. Aetna framed the issue in the case as:

[Whether] the employee exclusion clause of the PMA policy excludes liability to an employee of Niehaus, the named insured, in an action against Delaware, the omnibus insured. . . . The dispute centers upon the meaning of "insured". Appellee PMA, contends that the exclusion applies, pointing to the definition of Insured in the policy; "III. Definition of Insured (a): With respect to the insurance for bodily injury liability . . . the unqualified word 'insured' includes the named insured."

Aetna, on the other hand claims that "insured" in the employee exclusion must be confined to mean this particular insured claiming coverage, here Delaware. Since Skinner is not an employee of Delaware, the exclusionary clause would be inoperative, and PMA would be liable under the policy.

Here the issue is whether the employee exclusion clause of the Liberty policy excludes liability to an employee of Marty's, the named insured, in an action against Motor Freight, the omnibus insured. Defendant Liberty, pointing to the definition of the insured in the policy, contends that the exclusion applies. Plaintiff, on the other hand, claims that "insured" in the employee exclusion must be confined to mean the particular insured claiming coverage, here Motor Freight; since Rispo is not an employee of Motor Freight, the exclusionary clause would be inoperative, and Liberty would be liable under the policy.

In PMA v. Aetna the Supreme Court of Pennsylvania accepted PMA's argument and held that the exclusion clause clearly and unambiguously excluded coverage for Skinner's injury. In doing so the Court accepted PMA's argument that since the named insured already covered his employees with a workmen's compensation policy, it would be unreasonable for it to pay for duplicating coverage benefitting an unknown third person (Delaware).
*fn3"
Similarly, we accept Liberty's argument and find that the exclusion clause in question here clearly and unambiguously excludes coverage for bodily injury of an employee of the named insured if the injury arose out of and in the course of his employment. Accordingly, having decided that David Rispo's injury arose out of and in the course of his employment, we shall enter judgment for defendant Liberty.
*fn4"

Daniel H. Huyett / J.

ORDER

NOW, July 15, 1975, for the reasons set forth in the within Memorandum, IT IS ORDERED that judgment is entered for defendant Liberty Mutual Insurance Company.

Daniel H. Huyett / J.

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.